Fonseca v. Sysco Food Services of Arizona, Inc.

• Decision Date: 06 July 2004
• Docket Number: No. 03-15193.,03-15193.
• Citation: 374 F.3d 840
• Parties: Sergio E. FONSECA, Plaintiff-Appellant, v. SYSCO FOOD SERVICES OF ARIZONA, INC., a Delaware for-profit corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 840

374 F.3d 840

Sergio E. FONSECA, Plaintiff-Appellant, v. SYSCO FOOD SERVICES OF ARIZONA, INC., a Delaware for-profit corporation, Defendant-Appellee.

No. 03-15193.

United States Court of Appeals, Ninth Circuit.

Submitted March 10, 2004.^*

Filed July 6, 2004.

COPYRIGHT MATERIAL OMITTED

Sergio E. Fonseca, plaintiff/appellant in propria persona.

Charles L. Fine, R. Shawn Oller, Littler Mendelson, Phoenix, AZ, for defendant/appellee Sysco Food Services of Arizona, Inc.

Appeal from the United States District Court for the District of Arizona; Susan R. Bolton, District Judge, Presiding. D.C. No. CV-01-01323-SRB.

Before: B. FLETCHER, REINHARDT, Circuit Judges, and RESTANI, Judge.^**

OPINION

BETTY B. FLETCHER, Circuit Judge:

Sergio E. Fonseca has worked for Sysco Food Services of Arizona, Inc. since 1995. He filed this pro se action alleging that Sysco discriminated against him on the basis of his Hispanic race and Guatemalan ethnicity, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981. The district court granted summary judgment for Sysco. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY¹

Sysco operates a food wholesale distribution business. It has 500 employees in Arizona. Fonseca alleges that he was subjected to discrimination based on his race and ethnicity beginning in 1999, soon after Don Peterson was hired as the manager of the Sysco warehouse where Fonseca is employed. While Fonseca is the only Guatemalan working at the warehouse, there are other Hispanic employees, mostly Mexicans. Fonseca alleges that white workers consistently have received better treatment than Hispanics in similar circumstances.

On March 16, 1999, Fonseca learned that his mother was dying, so he left his shift early with permission from his direct supervisor. Fonseca was called back to work only four days after he left, even though the collective bargaining agreement ("CBA") allows five days of bereavement leave after the death of an immediate family member. Peterson initially terminated Fonseca for taking "unauthorized" leave, but after Fonseca filed a grievance, the suspension was reduced to a disciplinary "point" for leaving work early the day he found out his mother was dying.

Fonseca identified three other employees who received their full leave without discipline or were given extra funeral leave. One Hispanic man was allowed to begin his funeral leave when his father was dying; a white employee was granted leave for the death of a cousin in contravention of Sysco policy; and another white employee received more than five days of paid leave. Each of these employees received leave accommodations directly from Peterson; in the last case, Peterson offered, without being asked, to give the man two extra days of paid leave.

In September 2000, Fonseca was operating a forklift to move several cases of zucchini when the improperly loaded pallet tipped over, damaging one of the cases. Four supervisors saw the incident: Tom Haskell, Scott Fricke, Peterson, and Bill Zink, VP of Operations. Even though Fonseca had not loaded the pallet, Peterson called Fonseca's immediate supervisor and ordered him to give Fonseca one day disciplinary suspension. Fonseca filed a grievance and the suspension was reduced to a warning letter, which was placed in Fonseca's file.

Fonseca testified that he knows of several white employees who actually caused similar accidents or ones with more serious damage who were not disciplined. According to Fonseca's co-workers Lindsay Mark and Randy Sainz, within months of Fonseca's accident, two white employees caused much more damage to pallets of food than Fonseca did, but were not disciplined. Sysco informs all employees each time it disciplines one of them, but Mark and Sainz knew of no non-Hispanic employees who ever had been disciplined for damaging cases of food in the warehouse.

The same month as the zucchini incident, Fonseca went to tell Peterson about a problem with the new computer system. Peterson was familiar with the problem, and Fonseca spoke clearly, but Peterson pretended not to understand Fonseca. Fonseca repeated himself more than once while Peterson laughed at him and mocked his accent and repetition. Fonseca testified that he has never seen Peterson make fun of other employees' accents. The conversation with Peterson was not the only overtly negative reference to Fonseca's accent: earlier that year, Fonseca's immediate supervisor, Lee Rhodes, said to Fonseca: "Your accent is real weird." Fonseca replied, "It's probably because I'm not Mexican."

Fonseca also testified that between April 2000 and January 2001, there were ten to thirteen occasions when he was not offered overtime opportunities to which he was entitled because of his seniority.² Fonseca filed successful grievances for five of these occasions and eventually received lost overtime pay. Once, when Peterson had made the overtime decisions instead of another supervisor, Fonseca consciously did not challenge the loss of overtime, because he did not want to "get into trouble." On approximately six other occasions, he was passed over for overtime opportunities but did not file grievances.

Sysco presented evidence that there were two Caucasian employees who had also been bypassed for overtime opportunities. However, Fonseca testified that nobody else had to file a grievance to get paid for missed overtime opportunities. The white employees, including Paul Roggatz, told Peterson that they were passed over, and Peterson said right away that he would take care of it. In contrast, Roggatz overheard Fonseca telling Peterson about a similar missed opportunity only one week later. Instead of arranging for Fonseca to be compensated, Peterson wrongly indicated that it was Fonseca's fault that he missed the overtime. Fonseca had to file a grievance before he was compensated.

For each of his successful grievances, Fonseca alleges that he repeatedly had to request payments, and sometimes was not paid for weeks, while white employees were always paid in their next paychecks. Supervisor Haskell's testimony confirms that "employees who are successful in their grievances are usually paid by the next pay period." Peterson must approve each payment for a successful grievance. Fonseca testified that he has requested help from Peterson each time his pay was delayed but Peterson has never resolved it. On one occasion, Peterson did not deny that the check should have been given to Fonseca within 48 hours, but allegedly said: "We're not going to waste three hours today to issue one check for you."

One of Fonseca's Hispanic co-workers, Mario Mendoza, has been treated similarly. In a declaration, Mendoza stated that he was passed over for overtime, told to return early from a properly scheduled vacation, and threatened with discipline for minor damage caused when Mendoza was driving a truck. Mendoza was also subjected to explicit racial slurs, including once when Mendoza caught a rat in the food warehouse and his co-workers drew a sexually explicit cartoon of him as a "Mexican rat" caught in a trap. Fonseca submits that Mendoza's declaration is indicative of racial prejudice throughout the Sysco warehouse and that it supports Fonseca's allegations of discrimination.

Fonseca filed a complaint with the EEOC on November 22, 2000. He received a right to sue letter on April 24, 2001. He timely filed this action in Maricopa County Superior Court, then Sysco removed the case to federal court. In granting Sysco's summary judgment motion, the district court excluded the only evidence of disparate treatment as inadmissible hearsay, and held that the overtime errors were not adverse employment actions because Fonseca successfully resolved them through the grievance process. Fonseca appeals.

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003). Evidentiary rulings made in the context of summary judgment motions are reviewed for abuse of discretion. American Civil Liberties Union v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir.2003), cert. denied, 540 U.S. 1110, 124 S.Ct. 1077, 157 L.Ed.2d 897 (2004).

ANALYSIS

I. Evidentiary Rulings and Procedural Bar

Before evaluating whether Fonseca is entitled to a trial on his employment discrimination claims under Title VII and 42 U.S.C. § 1981, we must resolve certain evidentiary and procedural issues to determine which evidence may be considered. These issues are: (1) whether Fonseca's allegations about funeral leave are barred by the statute of limitations; (2) whether the district court properly excluded the Mendoza declaration because Fonseca did not timely disclose it; and (3) whether the district court abused its discretion in holding that all of Fonseca's evidence of disparate treatment is hearsay.

A. Statute of Limitations

Fonseca alleges that he was denied full funeral leave and improperly disciplined for taking funeral leave in March 1999. Fonseca's Title VII claim regarding funeral leave is time-barred because he did not file a complaint with the EEOC within 300 days of Sysco's discriminatory act. 42 U.S.C. § 2000e-5(e)(1); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ("[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."). However, his § 1981 claim was timely under 28 U.S.C. § 1658, which provides a four-year statute of limitations for claims made under federal statutes that were enacted after December 1, 1990. See 28 U.S.C. § 1658(a); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 1845, ___ L.Ed.2d ___ (2004) (applying § 1658 to § 1981 claims for wrongful termination, failure-to-transfer and hostile work environment because such claims were "made possible" by the Civil...